Kaur (Migration)

[2023] AATA 1456

Kaur (Migration) [2023] AATA 1456 (10 January 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mrs Baljinder Kaur

REPRESENTATIVE:  Mr Christopher Levingston

CASE NUMBER:  2100423

DIBP REFERENCE(S):  CLF20162239 OSF2012/055738

MEMBER:Kira Raif

DATE:10 January 2023

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision not to grant the applicant a Partner (Migrant) (Class BC) visa

Statement made on 10 January 2023 at 8:15am

CATCHWORDS
MIGRATION – Partner (Migrant) (Class BC) visa – Subclass 100 (Spouse) – relationship ceased – family violence claim – non-judicially determined claim – evidential requirements – independent expert (IE) opinion – validity of opinion – “reverse trafficking” – sponsor’s subsequent spouse recognised as a victim of family violence – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), rr 1.21, 1.23, 1.24, 1.25; Schedule 2, cls 100.221

CASES
He v MIBP [2017] FCAFC 206

STATEMENT OF DECISION AND REASONS

Application for review

1. This is an application for review of a decision made by a delegate of the Minister for Immigration on 23 December 2015 to refuse to grant the applicant a Partner (Migrant) (Class BC) visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant is a national of India, born in April 1987. She made the application for the visa on 14 November 2012 on the basis of her relationship with the sponsor. The delegate refused to grant the visa on the basis that the applicant did not meet cl.100.221 because the applicant’s relationship with the sponsor ended and the delegate was not satisfied that any of the exceptions applied.

3. The applicant sought review of the delegate’s decision. In August 2017 the Tribunal (differently constituted) affirmed the decision under review. The applicant sought judicial review and the matter has been remitted to the Tribunal for reconsideration.

4. The applicant appeared before the Tribunal on 27 April 2021, 24 November 2021, 27 September 2022 and 11 October 2022 to give evidence and present arguments. The applicant was represented in relation to the review. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

   Relevant law

5. At the time the application was made, Class BC contained Subclass 100. The criteria for the grant of this visa are set out in Part 100 of Schedule 2 to the Migration Regulations 1994 (the Regulations). Relevantly to this matter the primary criteria include cl.100.221 which requires the applicant to be the spouse or de facto partner of the sponsor, unless the relationship has ceased and certain circumstances exist. These include that the applicant, or a member of the family unit, has suffered family violence committed by the sponsor: cl.100.221(4)(b), (c)(i). The applicant claims this occurred in this case.

6. Under r.1.23 of the Regulations, a person is taken to have suffered or committed family violence if there is evidence tested before a court; or the visa application includes a non-judicially determined claim of family violence, and either the Minister (or the Tribunal on review) is satisfied that the alleged victim has suffered relevant family violence or an opinion of an independent expert has been given that the alleged victim has suffered relevant family violence. Relevant family violence is defined in r.1.21. These regulations, as relevant to this decision, are extracted in the attachment to this decision. The Tribunal notes that the violence, or part of the violence must have occurred during the relationship: r.1.23(3), (5), (7), (12), (14).

7. In the present case the applicant is seeking to establish family violence on the basis of a non-judicially determined claim of family violence.

   Has a claim of family violence been made under the regulations?

8. Under r.1.23, a visa application is taken to include a non-judicially determined claim of family violence where either a joint undertaking to a court has been made by the alleged victim and alleged perpetrator or evidence in accordance with r.1.24 is provided.

9. The applicant in this case is seeking to rely on evidence referred to in r.1.24 – namely, a statutory declaration under r.1.25 and evidence of a type and number specified by the Minister for these purposes.

10. A statutory declaration under r.1.25 must be made by the spouse or partner of the alleged perpetrator. If the alleged victim is the spouse or partner, the statutory declaration must set out the allegation of family violence, name the person alleged to have committed the relevant family violence and if the conduct was not directed at the spouse or partner, name the person to whom it is directed and their relationship with the deponent: r.1.25(2). There are different requirements if the family violence is alleged to have occurred to another person: r.1.25(3).

11. The applicant provided several statements and declarations to the previous Tribunal. Among these was the applicant’s own declaration, completed on Form 1040, a medical report from Dr Sidhu, a clinical psychologist, medical certificates from Dr Nalder and Dr Mills and other materials. The applicant provided to this Tribunal a further affidavit outlining what she claims to have been instances of family violence. There are multiple other documents and submissions – including those provided in response to Tribunal’s s. 359A letters – which relate to family violence. The Tribunal has had regard to all the materials submitted by the applicant.

    Has the applicant suffered family violence?

12. In oral evidence the applicant described the family violence. She stated that there was an issue with the dowry and her partner demanded dowry, which she would not provide and that resulted in many arguments. They had arguments over many things and her husband was controlling over what she could do and how to behave and whether she could work and what clothes she could wear. He prohibited her from having a job and controlled her contact with friends and controlled many other aspects of her daily living. The applicant referred to two instances when her partner forced her to have an abortion.

13. The applicant states that when she heard from the Department around December 2015, they were still talking to each other as husband and wife. She thought they might reconcile and it was not until 2017 that she thought that would not happen. The formal divorce was filed around October 2016.

14. Having considered all of the evidence before it, the Tribunal was not satisfied for the purposes of r.1.23 that the applicant has suffered relevant family violence. In accordance with that regulation, the Tribunal sought the opinion of an independent expert (IE). On 22 June 2021 the first IE provided an opinion that the applicant had not suffered relevant family violence. The Tribunal provided the applicant with that information pursuant to s. 359A of the Act. In her response, the applicant raised concerns about the validity of the IE opinion. The applicant sought, and was granted, time to provide additional evidence and submissions to the Tribunal and she attended another hearing on 24 November 2021. In that hearing the applicant outlined her concerns with the validity of the IE opinion.

15. The Tribunal referred the applicant’s concern to the independent expert. On 3 August 2022 the Tribunal received the IE opinion that the applicant did not suffer the relevant family violence. This information was again sent to the applicant pursuant to s. 359A of the Act. The applicant replied by raising concerns with the IE opinion. The applicant was invited to attend another hearing on 11 October 2022. During that hearing the applicant also outlined her concerns with the second IE opinion.

16. The Tribunal arranged for a further IE opinion. On 20 December 2022 the Tribunal received the third IE opinion that the applicant did not experience family violence.  This information was provided to the applicant pursuant to s. 359A of the Act. In her submission to the Tribunal of 5 January 2023 the applicant noted her concerns with that opinion. The applicant provided a lengthy statement explaining why she believes the IE report is ‘full of contradictions, lies, mismatch of information to mislead and personal and revenging opinion”. The applicant provided many examples of what she claims were errors with the report or the assessment of her evidence. The Tribunal has considered the applicant’s submission but notes that many of the applicant’s objections appear to be with the fact that her claims were not accepted, or not given the weight she believes they deserved or not resulting in the outcome that she believes to be correct. While the Tribunal accepts that the applicant may genuinely hold the views that she has expressed in her submission, the Tribunal is not satisfied that the applicant has established any errors in the IE report that would render it invalid.

17. The applicant’s representative also notes that the report refers to “reverse trafficking” conduct and the fact that the sponsor’s subsequent spouse has been recognised as a victim of family violence but there was no independent assessment of these matters. The Tribunal does not accept that is the case. The Independent Expert does refer to ‘reverse trafficking’ and the Tribunal is satisfied the IE has given consideration to that claim. The weight to be given to that evidence is a matter for the IE. Similarly, the IE acknowledges the finding made in relation to the other spouse of the sponsor and the Tribunal is satisfied the IE has had regard to that fact. However, it does not mean that the same finding must have been made in relation to the applicant. The Tribunal is not privy to the particular facts alleged by that person, nor the basis of the finding that this person was a victim of family violence. It cannot be said, in the Tribunal’s view, that unidentified conduct in relation to another person, which may or may not have been the same as conduct in relation to the applicant and which may or may not have had the same effect on the alleged victim (e.g. causing apprehension or fear) can or must establish that the applicant is a victim of family violence.

18. Having carefully considered the concerns raised by the applicant and the content of the report, the Tribunal has formed the view that the IE did consider evidence before her, did apply the correct legislative test and did provide the applicant with procedural fairness before reaching her conclusion. The Tribunal does not consider the IE report  was contradictory, misleading or ‘vengeful’. The Tribunal has formed the view that the IE’s report is valid and is, therefore, binding upon the Tribunal.

19. The Tribunal is satisfied that the opinion is authorised by the Regulations, in that it is provided by an independent expert who is a person suitably qualified to make the assessment, is an employee of an organisation specified for this purpose, and was properly made. Under r.1.23 the Tribunal is required to take as correct an independent expert’s opinion, properly made. Accordingly, the Tribunal finds that the applicant is not taken to have suffered family violence committed by the sponsor for r.1.22.

    Conclusion

20. Given the above conclusion that the claim of family violence has not been established, the applicant does not meet the requirements of cl.100.221(4)(b) and (c) for the grant of the visa. There is no evidence before the Tribunal that the applicant meets any of the alternative sub criteria. As the applicant does not meet an essential criterion for the visa, the Tribunal must affirm the decision under review.

    DECISION

21. The Tribunal affirms the decision not to grant the applicant a Partner (Migrant) (Class BC) visa

    Kira Raif
    Senior Member